Court File and Parties
Court File No.: CV-15-527131 Date: 2019-09-13 Ontario Superior Court of Justice
Between:
Andrew George Stanko Plaintiff
– and –
Core Biofuel Inc., Core LP, Karen Sue Kelly and Larry Melnichuk Defendants
Counsel:
Kaleigh Dryla, for the Plaintiff
Jaclyn C. McNamara, for the Defendants Core Biofuel Inc. and Core LP
Heard: In writing.
Reasons for Judgment
Thomas, RSJ.:
[1] This is a motion to transfer this action from Toronto to Sarnia brought by the plaintiff Andrew George Stanko. The defendants resist the proposed transfer.
[2] The determination of this motion is governed by the factors set out in Rule 13.1.02(b) of the Rules of Civil Procedure.
[3] The principles to be applied are succinctly captured by Firestone J. in para. 10 of Smartcentres Management Inc. v. Chubb Insurance Company of Canada, 2018 ONSC 7189. I have set out this reference below:
[10] A plaintiff has a prima facie right to select a venue for an action. The onus is on the moving party to show that it is “in the interest of justice” to transfer the action having regard to the factors outlined in Rule 13.1.02(2)(b). The plaintiff’s right to choose the venue is a right which should not be abrogated lightly. The court is to consider a “holistic” application of the factors outlined in the rule to the specific facts: see Chatterson v. M & M Meat Shops Ltd., 2014 ONSC 1897, 68 C.P.C. (7th) 135 (Div. Ct.), at para. 22; Hallman v. Pure Spousal Trust (Trustee of) (2009), 2009 51192 (ON SC), 52 E.T.R. (3d) 29 (Ont. S.C.), at para. 28. Gravelle v. CTV Television Inc., 2012 ONSC 2512, at para. 13; Joseph v. Lefaivre Investments (Ottawa) Ltd., 2005 19830 (Ont. S.C.), at para. 10.
[4] This motion to transfer is not the norm. In the majority of instances a defendant seeks to move the action from the location where it was commenced by the plaintiff. As pointed out by Justice Firestone, relying on several authorities, the plaintiff has a prima facie right to select the venue with the moving party facing the onus of showing a transfer is in the interests of justice considering the factors enumerated in Rule 13.1.02(2)(b).
[5] The proposed new place of trial should be “significantly better” (Chatterson v. M&M Meat Shops Ltd., 2014 ONSC 1897 para 29).
[6] The plaintiff, the moving party in this matter, reminds me that he has a right to choose where to commence this action. I agree. He chose Toronto. The plaintiff’s evidence is that he chose Toronto because his counsel at the time practiced there. The statement of claim was issued in Toronto on May 28, 2015.
[7] The plaintiff’s present counsel are located in Oakville.
[8] The matter has proceeded through the normal stages of litigation and was set down and a trial record delivered in Toronto by his Oakville counsel on January 3, 2019.
[9] The parties have received a notice from the trial co-ordinator advising that pre-trial and trial dates need to be scheduled before January 31, 2020 or it will be struck from the list. That notice was received by plaintiff’s counsel on March 4, 2019. The motion to transfer made pursuant to the procedure as described in the Consolidated Provincial Practice Direction was not brought until August 7, 2019.
[10] The focus of the material filed by the plaintiff is the significantly declining health of his wife. He and his wife reside in Sarnia. He has provided medical evidence that she suffers from advanced dementia and that her condition has deteriorated of late so that she is dependant on the plaintiff and the other caregivers he has retained. He is concerned that if he must attend for trial in Toronto he will be unable to assist in the care of his wife and monitor her condition.
[11] The plaintiff’s concern as expressed above is an important factor for me to consider pursuant to Rule 13.1.02(2)(b)(v), that is the convenience of the parties, the witnesses and the Court. It cannot, however, be determinative considering I must view the proposed transfer in a “holistic” fashion.
[12] In considering convenience, I note that all other parties are located in Burlington, much closer to Toronto than Sarnia. As previously noted, counsel for the plaintiff are located in Oakville. Counsel for the corporate defendants are located in Toronto. The personal defendants are self-represented and, as noted, are located in Burlington. All parties have identified a necessary witness from Calgary who will fly into Toronto to attend the trial.
[13] It is important to note that this is an action which seeks damages for wrongful dismissal. While the business location of the corporate defendant at the relevant time listed the plaintiff’s home address in Sarnia, the evidence points to it being a “virtual office” with no real physical location. All business was conducted electronically with shareholder meetings being held at a Toronto law firm. As such, there is little significance in the location of Sarnia as it relates to where the event of termination occurred (R. 13.1.02(2)(b)(i)) or where the damage was sustained (R. 13.1.02(2)(b)(ii)). In fact, the plaintiff’s evidence is that the defendants’ oppressive conduct took place in Burlington.
[14] The balance of the factors in the relevant rule have little application here. At this stage of the litigation, on this evidence, the plaintiff is not proposing a better location let alone a significantly better location. The application to transfer the action is dismissed.
[15] If the parties cannot agree on costs, I will receive their written submissions, limited to two typed pages plus their bill of costs within 30 days of the release of these Reasons. No submissions within that timeline will mean no order as to costs.
Regional Senior Justice B. G. Thomas
Released: September 13, 2019.
Ontario Superior Court of Justice
Between:
Andrew George Stanko Plaintiff
– and –
Core Biofuel Inc., Core LP, Karen Sue Kelly and Larry Melnichuk Defendants
Reasons for Judgment
Thomas, RSJ.
Released: September 13, 2019.